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July 13, 2011

"Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation"

The title of this post is the title of this important new piece available via SSRN by Margaret Colgate Love.  Here is the abstract:

This Article analyzes the scope of Padilla v. Kentucky, concluding that its logic extends beyond deportation to many other severe and certain consequences of conviction that are imposed by statute or regulation rather than by the sentencing court.  It proposes a set of reforms that would limit the disruptive effect of these co-called “collateral consequences” on the guilty plea process, and make a defense lawyer’s job easier.

Part I describes a case currently pending in the Pennsylvania Supreme Court that may yield some important clues about how broadly the Padilla doctrine will be applied to status-generated consequences other than deportation.  At issue in Commonwealth v. Abraham is whether a lawyer should have warned his client, a retired public school teacher, that pleading guilty to a misdemeanor sex offense would result in the permanent forfeiture of his vested pension benefits.

Part II looks at the collateral consequences doctrine as applied by the courts before Padilla to demonstrate its weakness in the Sixth Amendment context.  It then examines the Padilla decision itself and its progeny to date, and proposes a test for determining when a lawyer should be constitutionally required to notify a client about a particular statutory or regulatory consequence of conviction.  It concludes that the pension forfeiture at issue in Abraham meets that test.

Part III proposes three non-constitutional reforms “to complete Padilla’s unfinished business” where the substance of plea agreements is concerned.  The goal of these reforms is to minimize the extent to which harsh categorical sanctions destabilize the plea process on which the justice system has come to depend.  Using principles set forth in the ABA Criminal Justice Standards, the article recommends that jurisdictions should 1) compile and disseminate information about collateral sanctions; 2) eliminate those sanctions that are disproportionately severe or bear only a tenuous relationship to the crime; and 3) provide timely and effective ways to avoid or mitigate the sanctions that remain.  These reforms will not only shore up the plea system, they will propel a move away from a punitive model of collateral consequences that is frequently self-defeating and unfair, to one that can be justified in both moral and utilitarian terms.

July 13, 2011 at 10:19 AM | Permalink


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This just goes to show how ridiculous Padilla is. There's no good way to separate what collateral consequences trigger Padilla. With respect to aliens, how is it even possible (besides the vote of Supreme Court Justices) to find a right to have the state educate defendants on federal immigration law? (Note: I don't think the feds have to either, but it seems particularly wrong to make the state do so.)

Posted by: federalist | Jul 13, 2011 11:11:08 AM

Let me translate federalist: a criminal justice system works best when a defendant is not fully informed and is lied to by omission.

Posted by: any no mouse | Jul 13, 2011 11:25:22 AM

please explain, logically, how a state is somehow responsible for explaining to criminal aliens federal law. I get that SCOTUS voted that way, but it seems pretty hard to square that result with the language of the Sixth Amendment.

Posted by: federalist | Jul 13, 2011 11:32:41 AM

It looks like the defendant in the criminal case was charged with several offenses, some of which were porbably felonies. Since going to trial on such an offense graded as a felony and being convicted would probably also have resulted in loss of the pension, where's the harm? It seems to me the better question is why a subsequent felony conviction should result in loss of pension benefits in the first place. After all, the pension is, in economic reality, deferred compensation for work performed in the past. And, if the defendant were to be convicted, the state could, arguably, seize the money to pay restitution, the costs of imprisonment, etc.

Posted by: Greg JOnes | Jul 13, 2011 11:55:19 AM

Greg - For what it's worth, Mr. Abraham was originally charged with four misdemeanors, pled to two, and was sentenced to three years probation. The charge that resulted in forfeiture of his pension was a second degree misdemeanor that was not considered serious enough to warrant registration.

Posted by: Margy Love | Jul 13, 2011 4:12:10 PM

Alito said just a mention of imm consequences is enuf. Majority says def atty musy chant the magic words. Magin words is not the standard. Also, any judge taking a plea must do the same thing to assure that D understands what he is doing. Def atty.

Posted by: pablo greencard | Aug 8, 2011 3:11:34 PM

so what happens if the guilty plea is vacated? is the original charge dismissed or does the defendant get a new trial?

Posted by: esther igwe | Sep 22, 2011 9:17:32 AM

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